}-3n 





1 



F 392 'C. 

.B7 U49 

^"^"^ ' Union Calendar No. 329. 

61sT Congress, [ HOUSE OF REPRESENTATIVES, j Report 

3d Sessmi. \ 1 No. 1883. 



BOUNDARY LINE BETWEEN TEXAS AND NEW MEXICO. 



January 11, 1911. — Committed to the Committee of the Whole House on the state of 
the Union and ordered to be printed. 



Mr. Parker, from the Committee on the Judiciary, submitted the 

following 

REPORT. 

[To accompany S. J. Res. 124.] 

The Committee on the Judiciary, to whom was referred Senate 
joint resolution 124, reaffirming the boundary line between Texas and 
the Territory of New Mexico, having considered the same, report 
the same favorably and recommend that it do pass without 
amendment. 

This resolution recites the running, marking, establishing, and 
ratification of the lines between New Mexico and Texas, and enacts 
that no provision of the proposed constitution of New Mexico shall 
be construed to affect said boundaries known as the Clark lines; and, 
second, that the President of the United States in conjunction with 
the State of Texas may appoint commissioners to re-mark the lines 
as so determined and fixed; and, third, that the part marked by 
monuments shall remain the true line, and where no survey was 
actually made said boundary shall be marked by a straight line 
between the points so marked; and, fourth, that $20,000 be appro- 
priated. 

On the admission of the State of Texas, on September 9, 1850 (9 
Stat. L., p. 446), the west boundary extending north from latitude 32° 
was fixed at longitude 103° west of Greenwich, and a new Territory, 
knowai as New Mexico (sec. 2, p. 447), was created, bounding on the 
east on the same meridian. 

By the act of June 5, 1858 (11 Stat. L., p. 310), the President was 
authorized to appoint a person or persons who, in conjunction with 
such person or persons as may be appointed by the State of Texas, 
"shall run and mark the boundary lines between the Territories of 
the United States and the State of Texas." The second section pro- 
vides that such landmarks shall be established on said boundary at 
the beginning at Red River and at the other corners and on the 



^■1 



a- 

Q , /I ''1 



2 BOUNDAEY LINE BETWEEN TEXAS AND NEW MEXICO, 

several lines of said boundary as may be agreed on by the President 
of the United States or those acting under his authority and the said 
State of Texas or those acting under its authority. 

In 1859 and 1860 John H. Clark, the commissioner appointed by 
the United States, ran these lines, but did not complete this particular 
boundary line. The commissioner from Texas got into a quarrel 
with one of his subordinates and cjuit before the work was completed. 
Clark's full report was made in 1861 and was reprinted in 1882 in 
Senate Document No. 70 of the Forty- eventh Congress, first session. 

On March 3, 1891, in the sundry civil appropriation bill (26 Stat. L., 
p. 971) it was provided that out of the appropriation the Commis- 
sioner of the General Land Office, with the approval of the Secretary 
of the Interior — 

may assign a sum sufficient to complete the survey of the Public Land Strip — other- 
wise known as No Man's Land — and the boundary line between said Public Land 
Strip and Texas and between Texas and New Mexico, established under act of June 
5, 1858, is hereby confirmed. 

The message of the President of the United States, hereto annexed 
as an appendix, fully states the necessity not to disturb this line as 
so established. 

It has been ratified both by the United States and by the State of 
Texas, as stated in the President's message. It has been the line up 
to which all patents and grants have been made. 

A full report was made on this subject in the Fifty-ninth Congress 
by Mr. Birdsall, from this committee (H. Kept. No. 1186) ; and Senate 
Report No. 940 of the present Congress, which report is also annexed 
hereto as an appendix, fully states the facts. 

It is argued that the act of 1891 simply established the one hundred 
and third meridian as the boundary and did not establish the monu- 
ments made by John H. Clark. A reference to the above acts proves 
the contrary. The one hundred and third meridian had been made 
the boundary in 1850. The act of 1858 provided for a survey and 
the establishment of landmarks to establish the position of the 
boundary. Clark's work was done under that act, and it is that 
survey to which the statute obviously refers, because it provides for 
a completion of the survey of the Cherokee Strip, otherwise known as 
No Man's Land — that is, of those boundaries that had not been there- 
tofore surveyed — and confirms the boundary lines as established by 
the previous survey. Its reference is to surveys, and not to mere 
meridians. 

Second. It is argued that the line as established is about 3 miles 
west of where it ought to be. This must be admitted. Mistakes are 
incident to all surveys of astronomical lines. This is shown in the 
instructions to Mr. Clark (S. Doc, p. 264) advising him to check 
his survey of longitude by connection with the Kansas boundarj^ 
on the north and the town of Frontera on the south, because he 
would not have instruments to make the lunar observations. Stellar 
observations depend on chronometers, and four seconds error means 
over a mile. His instructions also recognized that he might not be 
able to go over all of the line because of its mountainous and arid 
character. His report (same document, pj). 296, 297, 299) shows that 
he did fix the longitude of the north and south starting points of his 
survey by measurement from the west boundary of Kansas and from 
the town of Frontera, as so instructed. 



<<r BOUNDARY LINE BETWEEN TEXAS AND NEW MEXICO. 



O 



J It seems just possible that the whole difhculty came from a com- 
J parison of Washmgton longitude — which determined the west bound- 
'^^^Tvary of Kansas — and Greenwich longitude. The Washington observa- 
^ tory was intended to be placed upon the seventy-seventh meridian, 
* but this being too near the Baltimore & Ohio Kailroad, it was put 
^nearly 3 miles farther to the west. All the maps until 1860 show 
s Washmgton longitude as reckoned from the seventy-seventh meridian 
exactly, and Clark probably supposed that such had been the reckon- 
ing, whereas the reckoning for marking 25 degrees west longitude 
from W^ashington, which was the west boundary of Kansas, appears 
to have been made from the Naval Observatory under an act of 1850 
(R. S., sec. 435) as to astronomical work only, and which should not 
apply to land survej^s. This is a matter of curiosity. 

But mistakes of this sort can not affect a located line. There is 
many a State whose lines have been in doubt on questions of longitude 
or latitude. Maryland extends by its original charter to the fortieth 
degree of latitude, and the State of Pennsylvania was to extend south 
only to that degree. This would give the city of Philadelphia to 
Marj'land. Like difficulties are found throughout the United States, 
but a boundary once confirmed by United States statute must stand. 
This boundar}^ was so confirmed by the United States and Texas 
nearly 20 years ago. It has been surveyed and recognized for 50 
years. 

We append also copies of the material parts of the statutes. 



[House of Representatives. Document No. 1076, Sixty-first Congress, third session.) 

To the Senate and House of Representatives: 

The constitutional convention recently held in the Territory of New Mexico has 
submitted for acceptance or rejection the draft of a constitution to be voted upon by 
the voters of the proposed new State, which contains a clause purporting to fix the 
boundary line between New Mexico and Texas which may reasonably be construed 
to be different from the boundary lines heretofore legally run, marked, established, 
and ratified by the United States and the State of Texas, and under which claims 
might be set up and litigation instigated of an unnecessary and improper character. 
A joint resolution has been introduced in the House of Representatives for the purpose 
of authorizing the President of the United States and the State of Texas to mark the 
boundary lines between the State of Texas and the Territory or proposed State of New 
Mexico, or to reestablish and re-mark the boundary line heretofore established and 
marked; and to enact that any provision of the proposed constitution of New Mexico 
that in any way tends to annul or change the boundary lines between Texas and New 
Mexico shall be of no force or effect. I recommend the adoption of such joint 
resolution. 

The act of June 5, 1858 (vol. 11, U. S. Stats., 310) "authorizing the President of the 
United States in conjunction with the State of Texas, to run and mark the boundary 
lines between the Territories of the United States and the State of Texas," under 
which a survey was made in 1859-60 by one John H. Clark, and in the act of Congress 
approved March 3, 1891 (vol. 26, U. S. Stats., 971) ''the boundary line between said 
Public Land Strip and Texas, and between Texas and New Mexico, established under 
the act of June fifth, eighteen hundred and fifty-eight, is hereby confirmed," and a 
joint resolution was passed by the Legislature of Texas and became a law March 25, 
1891 "confirming the location of the boundary line established by the LTnited States 
commissioner between No Man's Land and Texas, and Texas and New Mexico, under 
the act of Congress of June fifth, eighteen hundred and fifty-eight." (Laws of Texas, 
1891, p. 193, Resolutions.) 

The Committee on Indian Affairs, in its report of Maj^ 2, 1910 (No. 1250. 61st Cong., 
2d sess.), recommended a joint resolution in the fourth section of which appears the 
following: 

'^Provided, That the part of a line run and marked by monument along the thirty- 
second parallel of north latitude, and that part of the line run and marked along the 



4 BOUNDARY LINE BETWEEN TEXAS AND NEW MEXICO. 

one hundred and third degree of longitude west of Greenwich, the same being the east 
and west and north and south lines between Texas and New Mexico, and run by 
authority of act of Congress approved June fifth, eighteen hundred and fifty-eight, 
and known as the Clark lines, and that part of the line along the parallel of thirty-six 
degrees and thirty minutes of north latitude, forming the north boundary line of the 
Panhandle of Texas, and which said parts of said lines have been confirmed by acts 
of Congress of March third, eighteen hundred and ninety-one, shall remain the true 
boundary lines of Texas and Oklahoma and the Territory of New Mexico: Provided 
further, That it shall be the duty of the commissioners appointed under this act to 
re-mark said old Clark monuments and lines where they can be found and identified.' ' 

The lines referred to in the paragraph above are the same as contained in the pro- 
posed joint resolution above referred to. 

Under the act of Congress approved June 20, 1910, "An act to enable the people 
of New Mexico to form a constitution and State government and be admitted into 
the Union," etc. (vol. 36, U. S. Stats.. 557), section 4 provides that when aconsti- 
tution has been duly ratified by the people of New Mexico, a certified copy of the same 
shall be submitted to the President of the United States; and in section 5 it pro\'ide3 
that after certain elections shall have been held and the result certified to the President 
of the United States, the President shall immediately issue his proclamation, upon 
which the proposed State of New Mexico shall be deemed admitted by Congress into 
the Union, by virtue of said act of June 20, 1910. The required acts have not taken 
place and therefore to all intents and purposes the proposed State of New Mexico is 
Btill a Territory and under the control of Congress. 

As the boundary line between Texas and New Mexico is established under the act 
of June 5, 1858, and confirmed by Congress under the act of March 3, 1891, and ratified 
by the State of Texas March 25, 1891, and as the Territory of New Mexico has not up 
to the present time fulfilled all the requirements under the act of June 20, 1910, for 
admission to the Union, there is no reason why the joint resolution should not be 
adopted as above provided, and I recommend the adoption of such resolution for the 
purpose of conferring indisputable authority upon the President in conjunction 
with the State of Texas to reestablish and re-mark a boundary already established 
and confirmed by Congress and the State of Texas. 

Wm. H. Taft. 

The White House, December 21, 1910. 



[Senate Report No. 940, Sixty-first Congress, third session.] 

The Committee on the Judiciary, which has had under consideration Senate joint 
resolution 124 (61st Cong., 3d sess.), for reasons hereafter fully stated, repoit the same 
favorably and recommend its passage. 

The contention of the constitutional convention of New Mexico, which is referred 
to in the joint resolution, seems to be that the boundary line of the Texas Panhandle 
on the west from latitude 36.30° north to latitude 32° north is located west of the 
true one hundred and third meridian of longitude west from Greenwich, and that a 
strip of territory between the true one hundred and third meridian and the line as 
now established and recognized by the United States and the State of Texas, about 
310 miles in length, and varying in width from a little over to considerably less than 
3 miles, of right belongs to New Mexico. 

SUMMARY OF THE LEGISLATION ENACTED BY THE CONGRESS OF THE UNITED STATES 
AND THE LEGISLATURE OF THE STATE OF TEXAS WITH REFERENCE TO THIS BOUNDARY 
AND OFFICIAL ACTS OF THE EXECUTIVE DEPARTMENTS OF BOTH GOVERNMENTS WITH 
REGARD THERETO. 

The United States, by an act of the Congress, approved September 9, 1850 (9 Stat. I;., 
p. 446), proposed to the State of Texas that in consideration of the payment of .filOjOOO,- 
000 to her the State would cede certain territory to the United States, and agree that 
her boundary on the north should commence at the intersection of the one hundredth 
meridian of longitude west from Greenwich and the parallel of 36.30° north latitude; 
run thence due west to the one hundred and thu'd meridian of longitude west from 
Greenwich; thence due south along said meridian to the thirty-second degree of north 
latitude, etc.; the line from the intersection of the one hundred and third meridian 
and 36.30° north latitude south to 32° north latitude to constitute the boundary line 
between the Texas Panhandle and New Mexico. 



BOUNDARY LINE BETWEEN TEXAS AND NEW MEXICO. 5 

By an act of her legislature, approved Noveniuer 25, 1850 (Gairmel's Laws of Texas, 
vol. 3, p. SoS), this proposal was accepted by the State of Texas. 

The Legislature of the State of Texas, by an act approved February 11, 1854 (Gam- 
mel's Laws of Texas, vol. 3, p. 1525). provided for the appointn.ent of" a commissioner 
by the governor to act in conjui^ction with a comini.ssioner to be appointed by the 
United States in running and marking the line here under discussion between the 
State of Texas and the Territorv of New Mexico, in accordance with the comi)act of 
1850. 

An act of the Congress approved June 5, 1858 (11 Stat. L., 310), provided for the ap- 
pointment of a commissioner by the President of the L'nited States to act in conjunc- 
tion with the Texas commissioner in running and mirking, among others, tliis line. 

Pursuant to these acts by the legislatures of their respective governments, in 1858 
John H. Clark was appointed commissioner on behalf of the United States, and William 
R. Scurry commissioner on behalf of the State of Texas. After some correspondence 
between the Secretary of the Interior and the governor of Texas it was decided to 
begin running and marking the line between Texas and New Mexico at the Rio Grande; 
thence eastward along the thirty-second parallel to the one hundred and third meri- 
dian; and thence north along that meridian as far as practicable. (Ex. Doc. No. 70, 
47th Cong., 1st sess., pp. 206, 207.) 

The survey was begun on the ground by the joint commissioners January 3, 1859, 
and the intersection of the Rio Grande and the thirty-second parallel having been 
determined, the line was run eastward and marked along that parallel to the- one 
hundred and third meridian, or what was determined to be the one hundred and 
third meridian, by transfer from Frontera, Mexico, in accordance with instructions to 
Commissioner Clark by the Secretary of the Interior. (Ex. Doc. 70, p. 264.) On the 
23d of May, 1859, the running and marking of the one hundred and third meridian 
north was begun and continued by John H. Clark alone, the Texas commissioner 
having abandoned the work. Clark ran and marked the line north 70 miles, or a 
little beyond the thirty- third degree of latitude (ib., p. 298). Finding it impracti- 
cable, because of scarcity of water, to proceed further, he then returned west to the 
Pecos River, and proceeded up that river and across to the intersection of the one 
hundred and third meridian and 36.30° north latitude. He located that intersection, 
which constituted the northwest corner of Texas, by observations to obtain the lati- 
tude, and by taking up the one hundred and third meridian, as then established at 
the Kansas laoundary, and transferring it to latitude 36.30°, in accordance with his 
instructions from the Secretary of the Interior (ib., p. 265). Having been joined at 
this intersection by another Texas commission, the prolongation of the one hundred 
and third meridian south was begun on August 23, 1859 (ib., p. 299), and continued 
to a point south of the thirty-fourth degree of north latitude (ib., p. 278), where, 
because of the lateness of the season and the occurrence of a succession of sand hills, 
the work was halted late in October, and never resumed along this meridian by him 
or any other commissioner representing the United States. 

Commissioner Clark, in his report of October 27, 1859, to the Secretary of the Interior, 
states that he ran the line on the one hundred and third meridian north (from its 
intersection with the thirty-second parallel) 70 miles (ib., p. 279); and that he ran 
and marked the line on the one hundred and third meridian south from its intersection 
with latitude 36.30°, 184 miles (ib., p. 280), erecting altogether on both lines 26 monu- 
ments, chiefly of earth and stone (ib., pp. 302, 303). 

The Commissioner of the General Land Office of the United States in a letter to 
the Secretary of the Interior, of date January 11, 1882, states that the office work con- 
nected with his surveys was never completed by Commissioner Clark, but that all 
of the field work was executed, except a part of the west boundary which was not run, 
viz, from 33 north latitude to 33.45 north latitude (ib., p. 1), which subslantially 
agrees with Clark's report of October 24, ]859, that — 

''After the establishment and marking of the corner the one hundred and third 
meridian was taken up and surveyed across the ('anadian and to a point on the Llano 
Estacado south of the thirty-fourth parallel, a distance, with the survey from the 
Kansas boundary, of about 240 miles." (Ib., p. 278.) 

And his letter of July 16, 1860, that he purposes "running out and marking the arc 
that remains (about 50') of this meridian on my return," referring of course to the 
hiatus between the thirty-third and thirty-fourth parallels which had not been actually 
run on the ground. (Ib., p. 280.) 

This left a hiatus of about 56 miles between the termini of Clark's north and south 
lines along the one hundred and third meridian, covering the greater portion of the 
western boundaries of the present counties of Yoakum and Cochran, in the State of 
Texas, and a portion of the eastern boundary of the county of Chaves, in New Mexico. 



6 BOUNDARY LINE BETWEEN TEXAS AND NEW MEXICO. 

By the act of March 3, 1891, the (.'oiiiire^s oi the United States confirined and adopted 
the lines run and marked by Commissioner Clark in the following language: 

"'That the boundary line between said public-land strip and Texas and between 
Texas and New Mexico established under the act of June 5, 1858, is hereby confirmed." 
(26 Stat. L., p. 71.) 

This act of the Congress was in terms accepted by a joint resolution of the Legislature 
of the State of Texas passed on March 25, 1891, duly establishing and accepting the 
lines laid down by Clark as the true boundary line between Texas and New Mexico. 
(Gammel's Laws of Texas, vol. 10, p. 196.) 

CONNECTION OF THE TERMINI OP CLARK's LINES. 

In 1892 W. D. Twitchell, a special deputy surveyor of the Howard land district in 
the State of Texas, and Mark Howell, county surveyor of Chaves County, N. Mex., as 
disclosed by a report bearing date August 24, 1892, which is printed in full in House 
Report No. 1788 (59th Cong., 1st sess., pp. 9-13), retraced Clark's line from the south- 
east corner of New Mexico to its termination, 70 miles north, which they determined 
to be latitude 33° 58'', and thence ran and marked a line connecting that point with 
the termination of Clark's 184-mile line down the one hundred and third meridian 
from the northwest corner of Texas, the hiatus or gap thus connected by Twitchell and 
Howell being 56 miles 296 varas long. Twitchell was an official surveyor, acting 
imder due appointment and direction of the commissioner of the general land office 
of the State of Texas, and Howell was the county surveyor of Chaves County, N. Mex., 
in the absence of other information acting presumably under that section of the laws 
of the Territorial Assembly of New Mexico of 1891 (chap. 33, Laws 1891), providing: 

"\Miere a boundary line between two counties is to be established, the county sur- 
veyors or their deputies of the two counties affected by such boundaries shall together 
make the survey and establish the line and erect monuments, etc." 

In a letter dated November 30, 1910, the acting commissioner of the general land 
office of the State of Texas, among other things, says, in regard to this Twitchell-Howell 
line connecting the termini of Clark's lines: 

" The report and the plat filed by Mr. Twitchell was approved by Land Commis- 
sioner W. L. McGaughey, and the line surveyed by him platted upon the maps of 
Cochran and Yoakum Counties, and it has uniformly been shown by those maps since 
the report was filed. * * * All sections or surveys of land except three touching 
the line (the Twitchell-Howell line) which connects the termini of Clark's lines belong 
to the permanent free-school fund and have been sold. * * * The State, acting 
through its general land office, has proceeded to treat the line run by Mr. Twitchell 
as the correct boundary. * * * There are 47 sections or surveys of school land and 
3 sections of private land whose western lines coincide with that portion of the State 
boundary run by Mr. Twitchell." 

The report by Twitchell and Howell of their survey indicates that in connecting the 
termini of Clark's lines they followed the correct surveyor's rule and the rule of law, 
and the rule confirmed and adopted by the Supreme Court of the United States in 
Land Company v. Saunders (103 U. S., 323): That where two points of a survey can 
be definitely located and the ensuing call for direction from either will not connect 
them the proper method is to connect them by the line of shortest distance between 
them. 

IDENTIFICATION AND RETRACEMENT OF CLARK's LINES. 

Commissioner Clark erected 26 monuments, chiefly of earth and stone, upon the 
lines he ran along the one hundred and third meridian (Ex. Doc. 70 ante. pp. 302, 303). 

Bulletin No. 194. series F, Geological Survey (U. S.), gives the following informa- 
tion in regard to the retracing of Clark's line running southerly from the northwest 
comer of Texas and the identification of his monuments: 

In 1882-1885 W. S. Mabry, district surveyor of Dallam, Hartley, and Oldham Coun- 
ties, located certainly the northwest corner of Texas, as fixed by Clark in 1859, the 
same constituting the northwest corner of the X I T pasture fence. Mabry ran the 
western boiindary line of Texas thence southward along Clark's old line (p. 29), iden- 
tifying Clark's monuments 15, 16, 17, and 20 (pp. 39, 40). 

Clark's monuments 15 and 16 on his old line, as identified by Mabry, were also 
identified by United States Surveyors Taylor and Fuss on March 5 and 6, 1883 (pp. 
29, 30). 

In 1900 Levi S. Preston, a United States deputy surveyor, entered into a contract 
with the General Land Office of the United States to redetermine and retrace Clark's 
line along the northern part of the one hundred and third meridian, and connect his 
surveys in New Mexico therewith. In the report of his survey Preston states that he 



BOUNDARY LIXE BETWEEN TEXAS AND NEW MEXICO. 7 

spared neither time nor expense in seeking to properly relocate this line, ridine; more 
than 200 miles on horseback to interview old-timers who has assisted in building the 
X I T pasture fence, which coincided with Clark's line as retraced by Mabry; and 
that he also had a conference with Mabry, and received from the latter a copy of his 
retracement made in 1882-1885 of Clark's line. Thereafter, on July 11, 1900, Preston 
positively identified Clark's monuments 15 and 17, which Mabry had previously 
identified and used in his retracement of the line (p. 39). Preston also found Clark's 
monument 16, and satisfied himself that the stone placed by Mabry on the State line 
was in the position of Clark's old monument 20 (p. 40). Preston further states that 
he excavated around the northwest corner of the X I T fence, which Mabry found 
marked with a large mound of earth and a cedar post suitably inscribed, and accord- 
ingly adopted as the northwest corner of Texas as located by Clark. Preston also was 
satisfied from his investigations that this corner was the true northwest corner of 
Texas as located by Clark, saying: 

"This point being almost in true alignment with the old Clark monuments found 37 
miles and 75 miles south, agreeing very closely with Mr. Mabry's tie of 1882, and 
within 150 links of the proper position east of the Johnson monument, as determined 
in 1858 and 1859, therefore I set a sandstone 60 bv 12 by 10 inches, 36 inches in the 

'N. W. cor. 
ground for the northwest corner of the State of Texas, marked — ?p ^ — on east, 

'N. M.' on west, '1859' on south, and '1£00' on north faces (p. 41)." 

Preston's retracement of Clark's line extended from the Canadian River to the 
northwest corner, a distance of 76 miles (p. 37). 

The monument erected by Clark at the southeast corner of New Mexico, the begin- 
ning of his projection of the one hundred and third meridian northward, in 1859, has 
been positively identified, both as to that monument itself, and also by bearings 
obtained from his last or thirty-first monument on the thirty-second parallel. (H. 
Rept. 1788, 59th Cong., 1st sess.) This corner monument was adopted as the start- 
ing point of their survey northward along the old Clark line by Twitchell and Howell 
in 1892. From this starting point they retraced Clark's line 70 miles north, identi- 
fying several of his monuments, and thereafter connected the northern end of his 
70-mile line with the southern terminus of his 184-mile line, as heretofore described. 
(See report, ante.) 

EXERCISE OF SOVEREIGNTY BY THE STATE OF TEXAS OVER THE TERRITORY EAST OP 
THE LINES, AND ACQUIESCENCE BY THE UNITED STATES THERETO. 

Surveyors of the State of Texas have run and marked this western boundary along 
various portions of Clark's lines. 

By an act of the legislature of the State, approved February 20. 1879. all the vacant 
and unappropriated public domain, among others, in the counties of Dallam. Hart- 
ley. Oldham. Deaf Smith. Parmer. Bailey, and Cochran, the western boundaries of 
which, in their order as named, extend for 210 miles from the northwest corner of the 
State south along its western boundary, was appropriated and set apart for the pur- 
pose of erecting a new State capitol. Under this act patents were issued by the State 
to all of the land running from the northwest corner of Texas for 150 miles down this 
western boundary line — the Clark line — which had unquestionably been run and 
marked upon the ground in 1859 for that distance. Fences were erected along this 
150-mile strip, and more than two-thirds of the land adjacent thereto has been sold 
by the syndicate first acquiring it, and it is now owned by many diverse owners. 

As said by the land commissioner of the State of Texas in a letter to the governor 
of the State on December 17. 1902: 

''A great number of titles have been patented to people along said lines, who in 
many instances have erected valuable and permanent improvements thereon." 

The town of Farwell, the county seat of Parmer County, Tex., a place of several 
hundred inhabitants, with numerous valuable buildings and other improvements, is 
located wholly upon the temtory which the constitutional convention of New Mexico 
claims. 

Necessarily, the State of Texas has assessed and collected taxes upon all of the lands 
it has sold and all that privately owned along these lines. The citizens resident along 
it have exercised the right of suffrage in Texas. Their children have been included 
in the school census of the State and the funds of the State appropriated and paid out 
for their education. In short, the State has exercised complete political and police 
jurisdiction over them and over their property for a series of years. 

Nor have any of these acts been in anywise controverted or questioned by any 
department of the United States. On the other hand, as disclosed by a letter from the 
Commissioner of the General Land Office of the United States under date of January 



8 BOUNDAKY LINE BETWEEN TEXAS AND NEW MEXICO. 

31, 1906 (House report, ante, p. 5), that office, properly regardful of the rights of the 
State of Texas, after stating that certain surveys of public land recently made in New 
Mexico had been terminated at points "indisputably west of the so-called syndicate 
fence, which, it has been determined, is approximately in the location of the Clark 
line," states that it "has so framed instructions as to avoid any steps being taken which 
would tend toward encouraging encroachment by public-land claimants upon lands 
east of the syndicate fence." This syndicate fence was built upon Mabry's retrace- 
ment in 1882-1885 of Clark's line of 1859, and Mabry's retracement was verified, for 
76 miles at least, by United States Surveyor Preston in 1900. 

Henry Gannett, the geographer of the United States Geological Survey, in a bulletin 
published by the Department of the Interior in 1904, treats this boundary as settled, 
saying at page 113: 

"The boundary lines between Texas and New Mexico were run and marked in 
1859-60 under the Department of the Interior." 

^^^lile no right has ever existed in the Territorial government of New Mexico to 
authoritatively raise any contention whatever in regard to this boundary, it may 
be noted that an examination of the acts of the Territorial Assembly from 1897 to 1909, 
inclusive, fails to disclose the passage or adoption of any statute, resolution, or memo- 
rial in any way questioning the boundary, or seeking to set up any adverse claim to the 
ownership exercised by the State of Texas. 

It is reasonably clear that Clark did not establish the true astronomical one hundred 
and third meridian, yet it is no longer an open question that ancient errors in the 
running and marking of a boundary line, which have been accepted and acted upon 
and acquiesced in by both parties, can not be corrected. 

The Supreme Court of the United States in Virginia v. Tennessee (148 U. S., 525) 
settled that question when it said: 

"Nor is it any objection that there may have been errors in the demarcation of the 
line which the States themselves by their compact sanctioned. After such com- 
pacts have been adhered to for years, neither party can be absolved from them upon 
showing errors, mistakes, or misapprehension of their terms, or in the line established, 
and this is a complete and perfect answer to the complainant's position in this case." 

In the more recent case of Louisiana r. Mississippi (202 U. S.) the Supreme Court 
say, at page 54: 

"Moreover, it appears from the record that the various departments of the United 
States Government have recognized Louisiana's owTiership of the disputed area, 
that Louisiana has always asserted it, and that Mississippi has repeatedly recognized 
it, and not until recently has disputed it. 

"The question is one of boundary, and this court has many times held that, as 
between the States of the Union, long acquiescence in the assertion of a particular 
boundary and the exercise of dominion and sovereignty over the territory within it 
should be accepted as conclusive," citing Virginia v. Tennessee, supra, and other 
authorities. 

It should be noted that the court in this last case cites the bulletin of the Geological 
Survey compiled by Henry Gannett in 1904, heretofore quoted from in this report. 

In the very recent case of Maryland v. West Virginia (217 U. S.. 1), decided February 
21, 1910, the Supreme Court of the United States specifically held that even if a meri- 
dian boundary line is not astronomically correct it should not be overthrown after it 
has been recognized for many years and become the basis for public and private rights 
of property (p. 44). 

When it is recalled that the northwest corner of Texas, as located by Clark in 1859, 
has been definitely identified by both United States and Texas surveyors; that three 
of the monuments erected by Clark upon the line he ran and marked from that corner 
south have like^vise been identified by surveyors of both Governments and the position 
of a fourth definitely determined; that the monument erected by him at the other end 
of the line fixing the southeast corner of New Mexico was still upon the ground in 
1892, is now definitely marked and was used as a starting point in 1892 by Surveyor 
Twitchell, acting officially for the State of Texas, and Surveyor Howell, the county 
surveyor of Chaves County, N. Mex., and that they identified several of Clark's monu- 
ments along the line he ran thence northward, the following language of the Supreme 
Court in the case last cited seems peculiarly pertinent: 

"It may be true that an attempt to relocate the Deakins line will show that it is 
somewhat irregular and not a uniform astronomical north and south line, but both 
surveyors appointed by the States represented in this controversy were able to locate 
a number of points along the line, and the north limit thereof is fixed by a mound, and 
was located by the commissioners who fixed the boundary between West Virginia and 
Pennsylvania by a monument which was erected at that point; and we think, from the 
evidence in this record, that it can be located, with little difficulty by competent 
commissioners." 



BOUNDAEY LINE BETWEEN TEXAS AND NEW MEXICO. 9 

It is unnecessary to discuss the proposition that the enabling act to admit New 
Mexico into the Union as a State in nowise changes the present status of this boundary- 
line, nor would its actual admission as a State. Directly in point, however, are these 
excerpts from the opinion of the Supreme Court in the case of Missouri v. Iowa (7 
How.. 667): 

"The present controversy originated in 1837 between the United States and the 
State of Missouri, and was carried on for ten years before Iowa was admitted as a State. 
Previous to the controversy, and after Missouri came into the Union in 1821, many 
acts had been done by both parties most materially affecting the controversy, and 
tending to compromit the claims now set up, the one side as well as the other. The 
new State of Iowa came into the Union December 27, 1847, and up to this date she 
was bound by the acts of her predecessor, the United States, forasmuch as the latter 
might have directly conceded to Missouri a new boundary on the north as was done 
on the west; and so, likewise, Iowa is bound by the acts and admissions of the United 
States tending indirectly to confirm and establish a particular line as the northern 
boundary of Missoml." 

And at page 674: 

"From these facts it is too manifest for argument to make it more so, that the United 
States were committed to this line when Iowa came into the Union; and, as already 
stated, Iowa must abide by the condition of her predecessor and can not now be heard 
to disavow the old Indian line as her true southern boundary." 

Summarizing them, the facts appear to be: 

(1) That the one hundred and third meridian from latitude 36.30 north, south to 
latitude 32 north, was adopted as the western boundary line of the Texas Panhandle 
by compact between the Governments of the United States and the State of Texas 
in 1850. 

(2) That 70 miles were run and marked northward along the one hundred and third 
meridian from the southeast corner of New Mexico, and 184 miles were run and 
marked southward along said meridian from the northwest corner of Texas by John H. 
Clark, commissioner for the United States in the year 1859. 

(3) That a portion of Clark's old line south from the northwest corner of Texas 
along the one hundred and third meridian was retraced by W. S. Mabry. an official 
surveyor of the State of Texas, in the years 1882-1885, and four of Clark's monuments, 
including the one marking the northwest corner, identified certainly, and the position 
of one other (No. 20) accurately. That Clark's monuments 15 and 16 so identified 
by Mabry were likewise identified by United States Surveyors Taylor and Fuss in 1883. 

(4) That the Congress of the United States and the Legislature of the State of Texas 
by appropriate legislative enactments in 1891 adopted Clark's lines, as run and marked 
on the ground as the true boundary. 

(5) That the Clark line for the 70 miles north from the southeast corner of New 
Mexico has been retraced and his monuments identified in a joint survey by surveyors 
of Texas and New Mexico, who also ran and marked a line connecting the termini of 
Clark's north and south lines in 1892, and that this latter line bridging the gap has been 
officially recognized and acted upon by the State of Texas and acquiesced in by the 
United States. 

(6) That State Surveyor Mabry's line from the northwest corner south for 76 miles was 
retraced by United States Surveyor Preston, and the Clark monuments identified by 
Mabry likewise identified by Preston, and the northwest corner fixed by Mabry 
found to be con-ect by Preston, and adopted and properly marked by the latter in 1900. 

(7) That the State of Texa^^ has sold nearly all of the land whose western boundaries 
coincide with Clark's lines; and also all of the land except three sections privately 
owned, whose western boundary coincides with the line run by Twitchell and Howell 
in 1892 connecting the termini'of Clark's lines. 

(8) That the State has for many years exercised complete political and police 
jurisdiction over the territory east of the Clark lines and the Twitchell-Howell line. 

(9) That the United States have acquiesced in such acts of ownership and juris- 
diction by the State, and officially recognized the Clark lines when called into ques- 
tion by attempted locators on land alleged to be in New Mexico. 

From which it seems clear — 

(1) That irrespective of the correct astronomical location of the one hundred and 
third meridian between latitude 36.30 and latitude 32, the Clark lines, as run and 
marked on the ground, both by formal legislative adoption in 1891 by both govern 
ments and by long exercise of sovereignty by the State and acquiescence by the 
United States, constitute the true boundary and can not be changed. 

(2) That the Twitchell-Howell line, run and marked on the ground in 1892, con- 
necting the termini of the Clark lines, follows the rule of law applicable to such cases, 
and its adoption by the State of Texas and the acquiescence therein by the United 

H. Kept. 1883, 61-3 2 



10 BOUNDARY LINE BETWEEN TEXAS AND NEW MEXICO. 

States, and the intervening of numerous private property rights with reference 
thereto, constitutes it the true boundary. 

(3) That the enabling act to admit New Mexico into the Union as a State in nowise 
changes the status of this boundary, and as the United States have formally adopted 
and confirmed 254 miles of it and are estopped by long acquiescence from setting up 
any adverse claim as to the other 56 miles run and marked in 1892, New Mexico, as 
a State, will be concluded by the acts of her predecessor in sovereignty. 



[Act of Sept. 9, 1850; U. S. Stat. L., vol. 'J, pp. 446-447.] 

AN ACT Proposing to the State of Texas the esfallishmeiit of her northern and western boimdaries, 
the relinquishment by the said State of all territory claimed liy her exterior to said boundaries, and 
of all her claims upon the United States, and to establish a Territorial government for New Mexico. 

Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That the following propositions shall be, and the same hereby 
are, offered to the State of Texas, which, when agreed to by said State in an act passed 
by the general assembly, shall be binding and obligatory upon the United States, 
and upon the said State of Texas: Provided, The said agreement by the said general 
assembly shall be given on or before the first day of December, eighteen hundred 
and fifty. 

First. The State of Texas will agree that her boundary on the north shall com- 
mence at the point at which the meridian of one hundred degrees west from Green- 
wich is intersected by the parallel of thirty -six degrees thirty minutes north lati- 
tude, and shall run from said point due west to the meridian of one hundred and 
three degrees west from Greenwich; thence her boundary shall run due south to 
the thirty-second degree of north latitude; thence on the said parallel of thirty-two 
degrees of north latitude to the Rio Bravo del Norte, and thence with the channel 
of said river to the Gulf of Mexico. 

Second. The State of Texas cedes to the United States all her claim to territory 
exterior to the limits and boundaries which she agrees to establish by the first article 
of this agreement. 

Third; * * * 

Fourth. * * * 

Fifth. * * * 

Sec. 2. And be it further enacted, That all that portion of the territory of the United 
States bounded as follows: Beginning at a point in the Colorado River where the 
boundary line with the Republic of Mexico crosses the same; thence eastwardly 
with the said boundary line to the Rio Grande; thence following the main channel 
of said river to the parallel of the thirty-second degree of north latitude; thence 
east with said degree to its intersection with the one hundred and third degree of 
longitude west of Greenwich; thence north with said degree of longitude to the 
parallel of thirty-eighth degree of north latitude; thence west with said parallel to 
the summit of the Sierra Madre; thence south with the crest of said mountains to 
the thirty-seventh parallel of north latitude; thence west with said parallel to its 
intersection with the boundary line of the State of California; thence with said bound- 
ary line to the place of beginning — be, and the same is hereby, erected into a tem- 
porary government, by the name of the Territory of New Mexico; * * * 

[Act of June 5, 1858; U. S. Stat. L. vol. 11, p. 310.) 

AN ACT To authorize the President of the United States, in conjunction with the State of Texas, to run 
and mark the boundary lines between the Territories of the United States and the Stat« of Texas. 

Be it enacted bi/ the Senate and House of Representatives of the United States of America 
in Congress assembled, That the President of the United States be, and he hereby is, 
authorized and empowered to appoint a suitable person or persons, who, in conjunc- 
tion with such person or persons as may be appointed by and on behalf of the State 
of Texas for the same purpose, shall run and mark the boundary lines between the 
Territories of the United States and the State of Texas: Beginning at the point where 
the one hundredth degree of longitude west from Greenwich crosses Red River; and 
running thence north to the point where said one hundredth degree of longitude 
intersects the parallel of thirty-six degrees thirty minutes north latitude; and thence 
west with the said parallel of thirty-six degrees and thirty minutes north latitude 
to the point where it intersects the one hundred and third degree of longitude west 
from Greenwich; and thence south with the one hundred and third degree of longitude 
to the thirty-second parallel of north latitude; and thence west with the same thirty- 
second degree of north latitude to the Rio Grande. 



BOUNDAHY LINE BETWEEN TEXAS AND NEW MEXICO. 11 

Sec. 2. And be it further enacted. That such landmarks shall be established at the 
said point of beginning on Red River, and at the other corners, and on the said several 
lines of said boundary, as may be agreed on by the President of the United States, 
or those acting under his authority, and the said State of Texas, or those acting under 
its authority. 

Sec. 2. Be it further enacted, That the sum of eighty thousand dollars, orso much 
thereof as may be necessary, be, and the same hereby is, appropriated, out of any 
money in the Treasury not otherwise appropriated, to carry out the provisions of this 
act: Provided, That the person or persons appointed and employed on the part and 
behalf of Texas are to be paid by the said State: Provided further, That no persons, 
except a superintendent or commissioner, shall be appointed or employed in this 
service by the United States but such as are required to make the necessary observa- 
tions and surveys to ascertain such line and erect suitable monuments thereon and 
make retiu^n of the same. 

Approved, June 5, 1858. 

[Act of March 3, 1891; U. S. Stat. L., vol. 26, p. 971.] 

* * * And out of the sum herein appropriated for surveying the public lands 
the Commissioner of the General Land Office, with the approval of the Secretary 
of the Interior, may assign a sum sufficient to complete the survey of the Public 
Land Strip — otherwise known as No Man's Land — and the boundary line between 
said Public Land Strip and Texas, and between Texas and New Mexico, established 
under act of June fifth, eighteen hundred and fifty-eight, is hereby confirmed. 

o 



LiBRftRV OF CONGRESS 
005 788 460 5 W 



tlBRARV OF 



CONGBESS 




005 788 460 5 



